Summary: Putative common-law
wife admitted paternity of deceased worker's natural daughter but then
served discovery asking for proof of both the paternity and a parental
relationship. Guardian ad litem for the natural child seeks a
protective order barring the discovery.

Held: Protective order
granted except as to interrogatory seeking facts pertaining to whether
the discovering party was the common law wife of the deceased.

Topics:

Discovery: Protective
Orders. Where paternity of natural child of deceased worker
is not in dispute, discovery concerning paternity and the relationship
between the deceased and the child is immaterial and is not reasonably
calculated to lead to admissible evidence. Protective order barring
the discovery is granted.

Discovery: Relevancy
and Materiality. Where paternity of natural child of deceased
worker is not in dispute, discovery concerning paternity and the relationship
between the deceased and the child is immaterial and is not reasonably
calculated to lead to admissible evidence. Protective order barring
the discovery is granted.

¶1 This matter began on the
petition filed by Montana State Fund to determine the beneficiaries of
decedent Calvin Ray Cox under the Workers' Compensation Act. Among the
potential beneficiaries was Elizabeth Cahli-Rhae Cox, understood by State
Fund to be the biological child of decedent. (Petition, Exs. 4, 5.) On
May 16, 2003, this Court issued an Order to Respond to Joni Cox, as parent
and natural guardian of Elizabeth Cahli-Rhae Cox. On May 22, 2003, Joni
Cox filed documents with the Court, including:

¶1a A statement that she "was
married to Calvin Cox on or about the date of August 5 1989; we divorced
on or about September 1993. He is the biological father of Elizabeth Cahli-Rhae
Cox. Parental rights of Calvin Cox have never been forfeited for his daughter,
Cahli."

¶1b A certified copy of the
birth certificate of Elizabeth Cahli-Rhae Cox, naming Calvin Ray Cox,
as father, with the birth place of Montana, and Joni VeLyn Neill as mother.

¶1c A copy of the decree of
divorce, issued in the 301st Judicial District Court of Dallas
County, Texas, on November 17, 1992, decreeing that Joni VeLyn Cox and
Calvin Ray Cox be divorced and finding them the parents of Elizabeth Cahli-Rhae
Cox.

¶2 On May 28th,
counsel for Heather Marie Cox, another potential beneficiary, indicated
his client does not object to Cahli-Rhae Cox's status as a beneficiary
in this case. (May 28, 2003 letter from Mr. David A. Lauridsen.)

¶3 On June 2, 2003, counsel
for Brenda Warila Cox, another potential beneficiary, filed a Response
with the Court asking the Court to deny Cahli-Rhae Cox's claim for benefits
in "that Elizabeth Cahli-Rhea [sic] has made no claim for benefits and
it is believed that no contact has occurred between the decedent and Miss
Cahli-Rhea [sic] for at least two years." (Response to Motion for Order
Determining Beneficiary Status at 4.)

¶4 Attached as Exhibit 1 to
the Response was a copy of the Application for Informal Appointment of
Personal Representative in Intestacy filed by Brenda Warila Cox In the
Matter of the Estate of Calvin R. Cox. The Application was evidently filed
in the Montana Ninth Judicial District Court, Toole County, and was signed
by Brenda Warila Cox as applicant, and signed by her counsel, Dale L.
Keil, who is also counsel for Brenda Warila Cox in this proceeding. The
application asserted the identity of decedent's spouse and children, and
specifically named as "daughter," Elizabeth Cahli-Rhae Cox.

¶5 Given the developing dispute,
on June 12, 2003, this Court appointed attorney Richard J. Martin as Guardian
ad litem for Cahli-Rhae Cox.

¶6 Now before the Court is
the Motion for Protective Order filed by Mr. Martin on behalf of Cahli-Rhae
Cox. The motion objects to a series of interrogatories and requests to
produce served upon Cahli-Rhae Cox and Mr. Martin, which are attached
as Exhibit A to the Motion. Nine of the ten interrogatories ask for information
relating to whether the decedent was in fact Cahli-Rhae's biological father
and regarding what contact they had. For instance, the first interrogatory
asks for the "dates of contact between Calvin R. Cox and Chali-Rhae [sic]
Cox . . . ."; interrogatory number five asks for, "the blood types of
Chalie-Rhae [sic] Cox, Calvin R. Cox and Joni Cox"; and interrogatory
number seven asks, "when you were advised that Calvin R. Cox was your
biological father." Request for Production one through seven asks for
documents relating to similar matters. Request for Production No. 004,
for instance, asks for production of "all child support records pertaining
to Chali-Rhae Cox [sic]."

¶7 The Motion for Protective
Order argues that the information sought from the minor is "an unwarranted
invasion of her privacy, overly broad, unduly burdensome and intended
to annoy, harass or embarrass." The guardian ad litem argues
that the paternity of the child is not at issue. The motion attaches copies
of the child's birth certificate, and the aforementioned decree of divorce,
arguing there is no issue in this case regarding paternity.

¶8 The Court agrees and will
grant the motion as to interrogatories 001 through 009 and requests to
produce 001 through 007. Under section 39-71-116(5), MCA (2001), the definition
of beneficiary includes "an unmarried child under 18 years of age." The
response filed with this Court by Brenda Warila Cox does not challenge
paternity, but rather, through incorporating the Application, affirmatively
concedes that Cahli-Rhae is the decedent's daughter. This is also established
through the birth certificate and divorce decree. Brenda Warila Cox has
offered nothing to justify a fishing expedition regarding paternity, particularly
where she has herself signed a judicial document stating that Cahli-Rhae
Cox is the decedent's daughter. Interrogatories 001 through 009 and requests
to produce 001 through 007 are not reasonably calculated to lead to admissible
evidence and are burdensome and harassing.

¶9 Interrogatory No. 010, and
Request for Production No. 008, however, are as follows:

Interrogatory No.
010: Please state, in detail, each and every fact and witness
you will claim establishes that a common law marriage did not exist.

Request for Production
No. 008: Please provide a copy of every document you intend
to use to establish that a common law marriage did not exist.

These requests are calculated
to discover information relating to what is at issue in this
proceeding, whether Brenda Warila Cox is entitled to beneficiary status
as a common law spouse of decedent. If Cahli-Rhae Cox or her counsel have
information or documents they intend to use for arguing against the purported
common law marriage, Brenda Warila Cox is entitled to discover that information
and those documents. The guardian ad litem for Cahli-Rhae Cox
is ordered to answer Interrogatory No. 010 and Request for Production
No. 008 within fourteen days of the date of this Order.

ORDER

¶10 The motion for protective
order is granted as to interrogatories 001 through 009 and requests for
production 001 through 007.

¶11 The guardian ad litem for
Cahli-Rhae Cox is ordered to answer Interrogatory No. 010 and Request
for Production No. 008 within fourteen days of this Order.